CC Resolution No. 9116
RESOLUTION NO. 9116
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
CUPERTINO AUTHORIZING RENEWAL OF CONTRACT WITH
BLACKBERRY FARM GOLF PRO JEFF PISERCHIO
WHEREAS, there has been presented to the City Council a contract between the
City of Cupertino and Jeff Piserchio providing for his services as golf professional at
Blackberry Farm Golf Course; and
WHEREAS, the terms, conditions and provisions of the contract have been
reviewed and approved by the City Attorney and the Director of Parks and Recreation.
NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of
Cupertino hereby approves the aforementioned contract and authorizes the Mayor and
City Clerk to execute said agreement on behalf of the City of Cupertino.
PASSED AND ADOPTED at a regular meeting of the City Council of the City of
Cupertino this 20th... day of .June , 1994 by the following vote:
Y!lli: Members cl ~ Cïn: Council
AYES: Bautista, Burnett, Sorensen, Dean
NOES: None
ABSENT: Koppel
ABSTAIN: None
ATTEST: APPROVED:
Isl Kim Marie Smith
City Clerk
Isl Wally Dean
Mayor, City of Cupertino
resoluti\res9116.doc
AN AGREEMENT BETWEEN THE CITY OF CUPERTINO
AND JEFF PISERCHIO
FOR CONCESSIONAIRE AND MANAGEMENT SERVICES
AT BLACKBERRY FARM GOLF COURSE
This AGREEMENT is entered for the purpose of providing management services at
Blackberry Farm Golf Course ("Golf Course"), a CITY owned property, on an independent
contract basis.
A. TRRM OF CONTRACT.
This Agreement will become effective on July 1, 1994 and will continue to be in
effect until June 30, 1996, unless otherwise terminated under the provisions of this
Agreement.
B. OBLIGATIONS OF CONTRACTOR.
1. Regarding CONTRACTOR'S Management Service.~:
Dutie.~. CONTRACTOR agrees to (i) supervise Golf Course utilization; (ii)
schedule the golf shop and office staffs: (iii) enforce policies set for the public, league and
tournament use of the Golf Course, including ensuring that the Release Agreement, provided
by the CITY OF CUPERTINO, is executed when required; (iv) keep an accounting of all
proceeds generated by the use of the Golf Course and rental equipment; (v) maintain the
rental equipment; CITY to provide materials; (vi) manage all operations provided by the golf
shop and the Golf Course; and (vii) operate the Golf Course for that number of hours
authorized by the CITY.
2. Regarding CONTRACTOR'S Conc('.~sionaire Service.~:
(a) Golf Merchandise: Dutie.~. CONTRACTOR agrees to (i) operate the
Golf Shop and manage the sale, pricing, and inventory of Golf Merchandise; (ii) keep a daily
accounting of all proceeds generated from the sale of merchandise and forward such
accountings on a monthly basis to the CITY. CONTRACTOR shall provide a separate cash
register for recording sales; and (iii) be responsible for all local, state, and federal taxes with
regard to the golf merchandise.
(b) Driving Cage: Dutie.~. CONTRACTOR agrees to (i) operate and manage
the Golf Driving Cage for public practice and instruction; (ii) keep a daily accounting of all
proceeds generated from the operation of the Driving Cage and forward such accountings on
a monthly basis to the CITY; (iii) make any improvements or modifications to the Driving
Cage facility at CONTRACTOR'S expense. The CITY must approve any improvement or
modification to the Driving Cage prior to the start of work; and (iv) operate and maintain the
Driving Cage in a safe condition,
(c) Snacks: Duties: CONTRACTOR agrees to (i) provide and sell pre-
packaged food and canned beverage items for the convenience of the golfing public; (ii) said
items shall not compete or be in conflict with food and canned beverage items sold at the
Blue Pheasant Restaurant; (iii) keep a daily accounting of all proceeds generated from the
sale of snacks and forward such accountings on a monthly basis to the CITY; (iv) be
responsible for all local, State and Federal taxes with regard to the snacks; (v) comply with
all Health Department regulations regarding the sale of food and beverage items.
3. Performance of Services. CONTRACTOR will determine the method, details
and means of performing the above-described services, except that such services must be
performed to the satisfaction of the CITY. Any complaints about the services provided by
CONTRACTOR which are received by the CITY will be communicated to CONTRACTOR.
If the complaints are deemed valid by the CITY'S representative, Stephen Dowling, Director
of Parks and Recreation, and are not resolved within a reasonable period of time,
CONTRACTOR'S failure to respond to such complaints and to improve the service offered
may be grounds for the termination of this AGREEMENT.
The concessionaire service, Golf Shop, Driving Range, facility equipment and
supplies shall be maintained and operated in a safe, neat, clean and orderly manner. The
CITY reserves the right to have representatives on the Golf Course premises to monitor
CONTRACTOR'S various activities under this AGREEMENT.
4. Workers Compensation. CONTRACTOR agrees to provide Workers
Compensation insurance for his employees and agents (if applicable) and agrees to hold
harmless and indemnify the CITY for any and all claims arising out of injury, disability or
death of CONTRACTOR or any of his employees or agents incurred while performing
services on behalf of CONTRACTOR under this AGREEMENT. CONTRACTOR shall
submit to the CITY a Certificate of Workers Compensation Insurance and of current T.B.
tests for all employees retained by CONTRACTOR, to assist in the performance of this
AGREEMENT, who will be instmcting persons 18 years or younger.
5. EmplQyee Withholding, CONTRACTOR agrees to be responsible for
applicable withholding of taxes under State and Federal law for CONTRACTOR and any of
his employees or agents.
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6. Employee Status/Independent Contractor. At all times CONTRACTOR shall
be deemed to be an independent contractor and shall not be considered an employee of the
CITY,
7, Insurance. CONTRACTOR agrees to maintain a policy of insurance in the
minimum amount of One Million Dollars ($1,000,000) to cover any negligent acts committed
by CONTRACTOR or his employees or agents during the performance of any services under
this AGREEMENT. The insurance must have the name of the CITY listed as additional
named insured. CONTRACTOR agrees to hold the CITY free and harmless from any and all
claims arising from any such negligent act or omission or willful act or omission.
CONTRACTOR shall submit to the CITY a Certificate of Insurance naming the CITY as
additional named insured, Such Certificate of Insurance shall be subject to the CITY'S
approval.
8. Indemnification and Hold Hannle.~s. CONTRACTOR agrees to indemnify,
defend and hold harmless the CITY from any and all claims, demands, causes of action,
obligations, damages and liability of any nature whatsoever which arise as a result of this
AGREEMENT unless said damage is caused solely by the negligence of the CITY, its
employees or agent.
9. Payment to CITY. Records and Account~,
(a) CONTRACTOR shall adopt and maintain a system of records and
accounts approved by the Director of Finance of CITY. On or before the 25th of each month
during which this AGREEMENT remains in effect, CONTRACTOR shall deliver to CITY a
statement showing the total amounts of money collected or received by CONTRACTOR
from all sources during the preceding calendar month.
(b) Commencing July 1, 1994, CONTRACTOR shall remit to CITY the sum
of fifteen percent (15 %) of all gross receipts, derived from the golf merchandise, golf driving
cage, and snacks concessions.
(c) CITY reserves the right to require an annual financial review and
unannounced audits of gross receipts to verify accounting procedures of the Golf Course
operations.
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C. OBLIGATIONS OF THE CITY.
1. Cooperation. The CITY agrees to cooperate with CONTRACTOR to
accomplish the performance of CONTRACTOR's responsibilities under this AGREEMENT.
2, Compensation.
(a) CONTRACTOR'S Management Services: For managing and operating
the Golf Course and rental equipment under the terms of this AGREEMENT, the CITY will
pay CONTRACTOR a fee of Fourteen Hundred Forty Two Dollars ($1442) every two weeks
commencing July 1, 1994 and ending June 30, 1995, and Fouteen Hundred Eighty Six
Dollars ($1486) every two weeks commencing July 1, 1995, and ending June 30, 1996, for a
total of 52 payments,
(b) CONTRACTOR'S Concessionaire Service.~: As compensation for
providing concessionaire services performed under the terms of this AGREEMENT,
CONTRACTOR shall be entitled to keep and retain eighty-five percent (85 %) of gross
receipts (excluding sales tax) of monies received from the golf merchandise, golf driving
cage, and snacks concessions.
D. TERMINATION OF AGRRRMENT,
I, Termination for Breach. Should either CONTRACTOR or the CITY default
in the performance of this AGREEMENT or materially breach any of its provisions, the
other party may, at its option, immediately terminate this AGREEMENT by giving written
notification to the other party.
2. Termination ¡!pon Notice. Either party may terminate this AGREEMENT at
any time by giving ninety (90) days written notice to the other party. Unless otherwise
terminated in accordance with the terms of this AGREEMENT, this AGREEMENT shall
continue in force and effect for the period specified in Section A of this AGREEMENT.
E. GRNRRAL PROVISIONS.
1. Notice.~. Any notices to be given by either party under the terms of this
AGREEMENT shall be made in writing and may be delivered, either personally or by
certified or registered mail with postage prepaid and return receipt requested, as follows:
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TO CONTRACTOR:
Jeff Piserchio
2634 Heritage Park Circle
San Jose, CA 95132
TO CITY OF CUPERTINO: Cupertino Parks and Recreation
10300 Torre Avenue
Cupertino, CA 95014
Should either party terminate this AGREEMENT prior to the term specified; or should the
AGREEMENT not be renewed for another term; then the CITY shall purchase from the
CONTRACTOR the existing golf merchandise and snacks on hand at the prices established
by invoices. Additionally, the CITY shall reimburse the CONTRACTOR for improvements
made in the golf driving range; such reimbursement shall be based upon a depreciation
schedule agreed upon by both parties.
2. Entire AGREEMENT. This AGREEMENT constitutes the entire
AGREEMENT of the parties and supersedes any all agreements, either oral or written,
between the parties with respect to the subject matter of this AGREEMENT. Any
modification of this AGREEMENT shall be effective only if in writing and signed by both
parties.
3. Assignment, No portion of this AGREEMENT may be assigned or
subcontracted without the express written consent of the CITY, which consent shall not be
unreasonably withheld.
4. Partial Invalidity. If any provision of this AGREEMENT is held by a court of
competent jurisdiction to be invalid, void or unenforceable, the remaining provisions will
nevertheless continue in full force and effect without being impaired or invalidated in any
way.
5. C...overning Law. This AGREEMENT will be governed by and construed in
accordance with the laws of the State of California.
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IN WITNESS WHEREOF, this AGREEMENT is dated
APPROVED AS TO FORM:
City Attorney
June 16, 1994
CITY OF CUPERTINO
By:
Attested by:
Kim Smith
City Clerk
JEFF PISERCHIO, "CONTRACTOR",
an individual
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,1994